Considered in Grand Committee
My Lords, these regulations were laid before the House on 11 May. Following the terrorist attack at Fishmongers’ Hall—I take this opportunity to remember again the victims of that atrocity—in November 2019, the Home Secretary commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, to review the Multi Agency Public Protection Arrangements—MAPPA—used to supervise terrorists and terrorism-risk offenders on licence in the community. The Police, Crime, Sentencing and Courts Act 2022, which I shall hereafter refer to as the 2022 Act, established three new powers for counterterrorism policing: a personal search power, a premises search power and an urgent power of arrest. These powers were taken in response to recommendations made by Mr Jonathan Hall QC following his review of MAPPA.
These regulations relate to the new power of personal search, the creation of which was also recommended by the Fishmongers’ Hall Inquests—Prevention of Future Deaths report. The personal search power has been inserted into the Terrorism Act 2000 as new Section 43C of that Act by the 2022 Act. The new search power commences later this month on 28 June. As set out by the Government during the passage of the 2022 Act, the new search power will apply across the UK, enabling the police to stop and search terrorist and terrorism-connected offenders released on licence who are required to submit to the search by their licence conditions. The officer conducting the stop and search must be satisfied that it is necessary to exercise the power for purposes connected with protecting members of the public from a risk of terrorism.
The Government are clear that sensitive powers of stop and search should be subject to the code of practice setting out the basic principles for their use. Section 47AA of the Terrorism Act 2000 imposes a requirement on the Secretary of State to prepare a code of practice containing guidance about the exercise of search powers that are conferred by that Act. These regulations amend Section 47AA so that it extends to cover the new search power inserted into the Terrorism Act 2000 by the 2022 Act. Subject to Parliament’s approval, this consequential amendment will create a requirement for the Secretary of State to prepare a revised code of practice that includes guidance on the exercise of the power conferred by new Section 43C.
In anticipation of Section 47AA being amended, I can confirm that we are already in the process of engaging relevant stakeholders and updating the code of practice to reflect new Section 43C stop and search power. We plan to lay an order this summer alongside the draft revised code of practice for Parliament’s consideration and approval. As such, Parliament will have the opportunity to review and debate the revised code and its contents in due course. The regulations being considered today simply relate to the technical and consequential matter of whether to amend Section 47AA of the Terrorism Act 2000 to enable the Government to update the relevant code of practice in the manner that I have outlined. I think it is something the Committee will very much support. I beg to move.
My Lords, I thank the Minister for introducing these regulations and I associate myself with her remarks in relation to those affected by the Fishmongers’ Hall incident. One of the most important roles of the state is to protect its citizens from terrorism and we support every provision that can be shown to work in practice in helping to prevent and detect terrorism.
This is yet another stop and search power exercisable by the police. Generally, we are against any expansion of police stop and search powers, on the basis that existing powers are sufficient, because an increased use of stop and search does not generally lead to a reduction in crime and because of the negative impact of stop and search on visible minorities. For example, where the police are required to show suspicion, black people are seven times more likely to be stopped and searched; and where no suspicion is required, black people are 18 times more likely to be stopped and searched than white people. In addition, Home Office research shows that, above moderate levels, increasing stop and search has little or no impact in reducing crime.
However, this power—enabling the police to stop and search an offender released on licence for purposes connected with protecting the public from a risk of terrorism—appears, on the face of things, to be reasonable and proportionate. We have seen from tragic instances in the recent past, such as the terrorist attack at Fishmongers’ Hall in November 2019, that assessing the threat posed by those convicted of terrorism offences is very difficult to determine, and even those who are assessed as no longer a threat to the public and suitable for release under licence can, in reality, pose a threat to the public.
It will mainly be for the Parole Board to determine whether someone should be subject to the new powers as a condition of their licence, but the Explanatory Memorandum, at paragraph 7.2 says, “In most cases” the Parole Board will decide whether somebody should be subject to the new power. Can the Minister explain in what other circumstances someone could be made subject to these stop and search provisions, if that is not made a condition of their licence by the Parole Board?
As the noble Baroness explained, the regulations are not about the power itself—created by the Police, Crime Sentencing and Courts Act 2022 inserting new Section 43C in the Terrorism Act 2000—but are to ensure the requirement on the Secretary of State in Section 47AA of the 2000 Act to prepare a code of practice containing guidance about the exercise of stop and search powers conferred by that Act. That also applies to the new stop and search provision. It seems a bit cart before horse to make the requirement through these regulations and only then to prepare amendments to the code of practice, which will then be laid before Parliament for approval later this year, as the noble Baroness just explained.
All in all, while we support these regulations, in so far as they place a requirement on the Secretary of State to include the new power in the code of practice required by Section 47AA of the Terrorism Act 2000, it seems to be much ado about nothing until we see the revised codes of practice.
My Lords, I thank the noble Lord, Lord Paddick, and I thank the Minister for her clear and precise introduction to these new regulations. I associate myself with her remarks about remembering the victims of the Fishmongers’ Hall attack.
We also welcome these recommendations and are grateful to the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, for the review he conducted following the attack. We support these powers, which were added to the PCSC Act. As the noble Baroness knows, we will work with the Government on issues of national security, because there is no difference between any of us in wanting to ensure that our country is safe. So we support this SI which, as the Minister pointed out, is technical and simply ensures that the Secretary of State is required to prepare a code of practice to govern the new stop and search power.
As the noble Lord, Lord Paddick, said, stop and search is an important tool, but is a serious use of the state’s power and so it is vital that it is used proportionately and effectively. We welcome that this power is targeted at terrorist offenders who are out on licence; it will be part of their licence conditions. In other words, we are allowing a released terrorist offender, out on licence, to have their person searched, which Mr Hall said was needed. We support that change.
Can the Minister tell us when the code of practice will be published? I think she did, but can she reiterate, for the benefit of the Committee, exactly when the code will be published and laid before Parliament? Is it the case that the power we are debating cannot be used until that code of practice is laid before Parliament and agreed?
Will the code outline the sorts of circumstances under which the power might be used? In other words, what is the precise purpose of such a search conducted under these powers? As the noble Lord, Lord Paddick, raised, what difference is there between the vast majority of offenders who will have their licence agreed to by the Parole Board and some others? It is not clear what is meant by “others” and who will decide who they are.
The independent reviewer, Mr Hall, pointed out something else—I think this point will benefit the Committee. Section 185 of the Police, Crime, Sentencing and Courts Act provides that this stop and search power may be used
“for purposes connected with protecting members of the public from a risk of terrorism.”
Mr Hall pointed out that the purpose of similar stop and search powers in comparable legislation is defined as being
“for the purpose of ascertaining whether the individual is in possession of anything that could be used to threaten or harm any person”.
So the Minister will understand that, as Mr Hall has pointed out, there is a clear difference between the language that the Government have used in Section 185 and what they have used in comparable legislation. It would be helpful to the Committee if the Minister could explain whether the code will explain why there is this wider drafting and the difference that it is expected to make to the use of this power. There is an important distinction in the wording of this power compared with previous stop and search powers. It would be helpful for us to understand this.
With those brief comments, I reiterate our support for the Government on this SI and for all those fighting terrorism.
I thank both noble Lords for their basically supportive and succinct points. On the necessity for the new power, it was recommended by Jonathan Hall QC, as I said, and the Fishmongers’ Hall inquest report on the prevention of future deaths also recommended that a new power of personal search be created.
On when the new power will apply if licence conditions are not set by the Parole Board and on who will determine whether to impose them, as with any other licence condition, the decision to impose the licencing condition will be made by the appropriate releasing authority—either the Parole Board or the prison governor—on behalf of the Secretary of State.
The risk management plan will include licence conditions to manage specific identified risks, which will then inform the recommendation of necessary and proportionate licence conditions for the Parole Board or the releasing prison. But, in both circumstances, the process for recommending licence conditions is the same. The community offender manager will undertake a full risk assessment, taking into account all the relevant information, including from the police, prison and other agencies. This detailed assessment will form the basis of a risk-management plan that will be agreed by the relevant agencies under MAPPA.
The noble Lord, Lord Paddick, is nothing if not absolutely consistent on the disproportionality of the power. We are committed to tackling terrorism in all its forms and the power to conduct a search will apply to any terrorist offender who is subject to the relevant licence condition, regardless of their ethnicity. The legislation is quite clear that such a search cannot be conducted unless a police officer is satisfied that it is necessary for purposes connected with protecting members of the public from a risk of terrorism.
The Home Office published an overarching impact assessment and an equality statement for the Home Office measures in the 2022 Act, setting out that the proposals within the Act are not unlawfully discriminatory within the meaning of the Equality Act 2010, either directly or indirectly.
On when the code of practice will be laid, the Government will lay the revised code of practice before Parliament for its consideration at the earliest opportunity; as I said in my opening speech, it is currently envisaged that this will take place next month. The revised code of practice will make clear the distinct circumstances in which the new stop and search power will be available for use compared to existing stop and search powers.
As regards the breadth compared to other comparable pieces of legislation, the personal search will provide the means for the police to conduct assurance checks. It is envisaged that in the majority of cases this will be to check whether a relevant terrorist offender is in possession of something which could be used to threaten or harm a person: for example, a weapon or a fake suicide belt.
We recognise that there may be limited other scenarios in which a personal search may be necessary for purposes connected with protecting members of the public from a risk of terrorism when the offender may be carrying something which is, on the face of it, far more innocuous. An example of this might be the necessity to conduct a personal search to check whether the offender is in possession of a mobile phone in violation of their licence conditions. This provides a better means of monitoring risk because a contraband phone such as this would be unlikely to meet any definition of something that “could be used to threaten or harm” but, depending on the offender’s background, it might be used to contact terrorist networks, enable access to materials useful to preparing an act of terrorism, provide a route for them to radicalise others, or be used to remotely detonate an explosive device.
I hope I have answered the Committee’s questions. I emphasise again that the regulations being considered today will not amend the content of the relevant code of practice, and our draft revised code will be laid before Parliament and obviously will be subject to its approval in due course. I commend the regulations to the Committee.